People are Rational and Generally Make Good Choices, But Can They Be Tricked? Part 4

In prior articles, we wrote about the natural desire to prevail against perceived rivals and the potential use of game theory to understand obstacles in the current legal system as it takes families through parental separations and divorce.

We next began to focus on how the legal system begins to trick people into self-defeating patterns of decision making:

Trick #1 – distracting people from their life goals into thinking that legal outcomes are goals;

Trick #2 – treating divorce as a zero sum game;

Trick #3 - the system assumes disputes and seduces parents into thinking the same.

Here we focus on Trick #4: treating children as property.

The very word custody is a property term and established when children were in fact property.

Custody “awarded” children to a parent, historically in western culture to the father, because women did not own marital property until more recent times. With the rise of psychology as its own field of study, the tender-years doctrine emerged and young children were awarded to mothers and older children to fathers. The law began to treat children as a class of citizens requiring protection with child labor laws, child protection laws and laws prohibiting buying or selling children. Divorce law began to evolve also, although awarding custody remained intact until the 1970’s and the beginning of the “Custody Revolution” as author Richard Warshak put it. In the first two-thirds of the 20th century, custody was awarded to mothers at a 90% rate; the other 10% were largely mothers who abandoned the family, were in prison or were in psychiatric hospitals. As “shared” grew as a percentage of custody awards, some states dropped “custody” and replaced it with euphemisms, like “physical placement” or “parenting time.” However, all that changed was that a percentage of time with the child, like blocks of ownership and use, were being awarded. In other words, children are still property to be awarded, but each parent gets to own and use the property during predetermined blocks of time. That parents have fallen for this trick is evident in their very language, as they exclaim, “It is my time!” In other words, “I own the children now.”

Treating children like property and tricking parents into viewing time with their children as a property dispute, digs deep into the being of parents and millions of years of evolution. Of course they are willing to have an all-in battle! Books have been written and movies made about the lengths a parent will go to avoid the loss of a child. A child often spends more time with teachers than with parents, but parents do not perceive that as a loss of ownership of their child, so they do not take teachers to court.

The antidote to this trick is for parents to be greeted by planners not litigators who will help them plan how to continue to raise their children, given the logistic issue of parents now living in two homes. Just as they did when they lived together, they speak about their goals for their children and organize the family in a manner to achieve those goals. The planners help by asking questions, pointing out opportunity costs, eliciting the subjective goals of the parents and sharing ideas on how to mitigate risks; not by asking them to take a stand on a position.

Divorce is a transition and needs goal-based planning not a property battle over who owns how much of the children’s time.

Trick #4 - Treating Children As Property

DR. KENNETH H. WALDRON, PHD is a clinical psychologist and partner of Monona Mediation and Counseling in Monona, Wisconsin. Dr. Waldron has done research and published broadly on topics related to children of divorce.

He has presented to and trained groups of judges, lawyers and mental health providers nationwide and internationally, along with appearances on television and radio. He provides forensic services, including custody evaluations and expert testimony on divorce-related issues.

ALLAN R. KORITZINSKY, JD is a retired partner with Foley & Lardner LLP in Madison, Wisconsin. As a family law attorney representing individual clients for over 44 years, Mr. Koritzinsky has focused on divorce law, alternative dispute resolution and works with colleagues in estate and business planning and real estate transactions. Mr. Koritzinsky was listed in The Best Lawyers in America® for over 25 years.

Mr. Koritzinsky was the 2011 recipient of the State Bar of Wisconsin Senior Lawyers Division Leonard L. Loeb Award. Mr. Koritzinsky has authored or co-authored numerous articles and books and lectured in lawyer and judicial continuing education seminars throughout his career.